10 PROCTOR | March 2015
Conveyancing practice:
Caution urged when sending notices by email
On 1 December 2014, the Property
Occupations Act 2014 commenced.
Queensland Law Society and Real Estate
Institute of Queensland (REIQ) have released
new versions of the standard contracts –
the QLS/REIQ contracts for Houses and
Residential Land (10th edition) and the
QLS/REIQ contract for Residential Lots in
a Community Titles Scheme (6th edition).
Practitioners may have noticed that the
revised contracts include a new provision for
the giving of notices by email (clause 10.4(2)
(b)) in addition to the previous forms of giving
notices by delivery, post and sending by fax.
This provision was included as a direct
response to the ever-increasing reliance and
convenience of using emails in day-to-day
conveyancing practice.
However, the reliance on email as a means
of giving formal notices under the contract
(for example, notice of satisfaction of finance,
building and pest clauses or notice of
termination) creates practical and evidentiary
issues which conveyancing practitioners
must be aware of.
Unlike notices given by post or fax, clause
10.4 does not deem notices to be given at
a particular point in time, such as on receipt
of a ‘read receipt’ message or a particular
number of days after sending the email.
This means an email notice is not properly
given under the contract unless it is actually
received by the intended recipient.
Giving / receiving email notices
The time an email notice is received is governed
by the Electronic Transactions (Queensland)
Act 2001, unless excluded by the contract.
The notation at the end of the new clause
10.4(2)(b) provides:
“Note: Whilst notices under this contract
may be sent by email they are not ‘given’
until they are capable of being retrieved
by the addressee at the nominated email
address in accordance with s.24 of the
Electronic Transactions (Queensland)
Act 2001.” [See opposite page.]
It is important to note the distinction between
giving a notice to “an electronic address
designated by the addressee’ and giving
a notice to another electronic address.
In the first case, the notice is received
when it is “capable of being retrieved” by
the recipient. This is usually when the email
enters the recipient’s mail server rather than
the in-box of a particular person.
In the context of the QLS/REIQ contracts,
an address is designated by the addressee
only if the email address is completed in
the contract reference schedule; or if the
addressee has otherwise designated a
particular email address for notices. The fact
that two people have been communicating by
email in relation to a transaction is not sufficient
to amount to designating their respective
addresses for the purpose of s24(1)(a).
When a notice is sent to an email address
which is not a designated address, it is not
taken to have been given or received until
the email is capable of being retrieved from
the mail server and the addressee has become
aware of the email. Practically, this means if the
Friday 15 May 2015 | 7pm–late
$160 per ticket | Victoria Park , Herston
qls.com.au/annual_ball
Walk a path of leaf and flower to an enchanted garden
at this year’s Queensland Law Society Annual Ball.
back to contents